History > 2008 > USA > Justice > Federal justice (III)

5 Are Convicted

of Conspiring to Attack Fort Dix

December 23, 2008
The New York Times
By PAUL VON ZIELBAUER
and JON HURDLE

A federal jury on Monday convicted five men of conspiring to kill American soldiers at Fort Dix in New Jersey last year, but acquitted them of attempted murder.

The jury deliberated for six days before returning its verdict against the defendants: three brothers — Shain, Eljvir and Dritan Duka — and Mohamad Shnewer and Serdar Tatar.

The men, all Muslim immigrants who lived in South Jersey or Philadelphia, face a maximum term of life in prison.

Sentencing is scheduled for April 22 for the three brothers and April 23 for Mr. Shnewer, 23, and Mr. Tatar, 25.

During the trial in Federal District Court in Camden, N.J., federal prosecutors said the men planned to attack Fort Dix and military personnel there, and had taken concrete steps to train and arm themselves. Prosecution evidence included hundreds of secretly taped conversations between the defendants and F.B.I. informants; jihadist propaganda videos recovered from one suspect’s computer; and videotapes of an illegal purchase of several machine guns.

The jury also convicted Dritan Duka, 30, Shain Duka, 27, and Mr. Shnewer of possessing firearms with intent to attack the base. It convicted Eljvir Duka, 25, of possessing firearms as an illegal immigrant. All three Duka brothers arrived in the United States illegally years ago, as children, from the former Yugoslavia.

Defense lawyers argued that the men were never serious about attacking Fort Dix, and that the government informants repeatedly coaxed them into making the incendiary comments recorded on government wiretaps.

The defense also challenged the credibility of the informants. One was an Egyptian-born illegal immigrant on probation for bank fraud who was paid more than $230,000 by the F.B.I. for his undercover work; the other was paid about $150,000.

Prosecutors called the five men “radical Islamists” and portrayed their surveillance and prosecution of the defendants as a necessary countermove against terrorists. Ralph J. Marra, the acting United States attorney in New Jersey, rejected accusations that the defendants had been manipulated by F.B.I. informants.

“This was not something that was trumped up by a cooperating witness,” he said at a courthouse news conference. “The verdict was based solely on the words and actions of these defendants.”

Relatives of Mr. Shnewer and Mr. Tatar and members of their legal team charged that the defendants’ Islamic beliefs worked against them. Serpil Tatar, a sister of Mr. Tatar, called the conviction “a big lie.”

“We came here so we could have a better life,” she said, speaking through tears to reporters at the courthouse. “But what we saw shows there’s a question about whether there’s justice.”

Faten Shnewer, Mr. Shnewer’s mother, criticized the government for relying on well-paid informants who were well aware of the kind of information their F.B.I. handlers were seeking. “This is not justice,” she said.

Jim Sues, executive director of the New Jersey chapter of the Council on American-Islamic Relations, who spent several days in court listening to testimony, said that the men, though not innocent of any wrongdoing, were unjustifiably egged on by government informants into making conspiratorial statements about a terrorist attack on the base.

“The informant was much more than the informant,” Mr. Sues said in a telephone interview on Monday. “There was definitely some laws broken, but conspiracy to attack Fort Dix is a whole different story.”

Four of the men lived in Cherry Hill, a New Jersey suburb of Philadelphia; Mr. Tatar lived in Philadelphia. They were arrested in May 2007 after one of the government’s informants secretly videotaped them paying $1,400 for seven machine guns in the informant’s apartment.

Investigators later found videos on one defendant’s computer that showed clips of dead American soldiers and kidnapping victims about to be beheaded.

The investigation began in January 2006, after an electronics store clerk notified the F.B.I. that one of the men had brought in a video for duplication that showed 10 young men firing assault weapons at an outdoor range and shouting “God is Great” in Arabic. Among the 10 men in the video were the three Duka brothers and Mr. Shnewer.

The five defendants seemed to many to be far more South Jersey than seething jihadists. The Dukas are ethnic Albanians who worked in a family roofing business; Mr. Tatar, a legal immigrant from Turkey, worked as an assistant manager for a 7-Eleven in Philadelphia. Mr. Shnewer, an American citizen who was born in Jordan, was a taxi driver who also worked at a market run by his family in South Jersey.

Evidence showed that the men regularly watched and talked about Qaeda-inspired videos and visited a rented house in the Pocono Mountains where they fired weapons in what prosecutors said was training for an attack.

In March, Judge Robert B. Kugler, who also presided over this trial, sentenced a friend of the Duka brothers to 20 months in prison for supplying them with guns and ammunition. The friend, Agron Abdullahu, who had already served 11 months in prison when he was sentenced, was released in October, said his lawyer, Richard Coughlin.

Jurors declined to comment about their verdict but asked Judge Kugler to read their statement saying in part, “This has been one of the most difficult things that we have ever had to do.”

“During these last six days,” the statement went on, “we have held the fate of these five defendants in our hands, and we have not reached our conclusion lightly. The burden imposed on us has been heavy, but we are confident that our verdict has been reached fairly and impartially.”

    5 Are Convicted of Conspiring to Attack Fort Dix, NYT, 23.12.2008, http://www.nytimes.com/2008/12/23/nyregion/23fortdix.html?hp

U.S. Reverses Death Penalty Bid in Drug Case

December 13, 2008
The New York Times
By BENJAMIN WEISER

The United States attorney general, Michael B. Mukasey, has reversed a decision made by his predecessor and will not seek the death penalty in a federal murder case in Brooklyn that is set to go to trial next year.

The unusual decision, which was made public on Friday, came in a case in which a judge had specifically asked that Mr. Mukasey review an earlier decision to seek capital punishment made by Alberto R. Gonzales, who announced his resignation as attorney general in August 2007.

“I just think that a clearheaded independent evaluation is in order with regard to this case,” the judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, said a month later, after President Bush made known that he would name Mr. Mukasey as Mr. Gonzales’s successor.

Although Judge Garaufis said he was “agnostic about the outcome” of such a review, he suggested that he did not agree with Mr. Gonzales’s view that capital punishment was warranted.

“It’s important for the Justice Department to examine the use of the very limited resources of the United States attorney’s office and of the court in pursuing the death penalty in this case,” the judge said.

The defendant, Gerard Price, was charged in a 1999 drug-related killing that could have carried the death penalty on conviction. Prosecutors charged in a federal indictment that Mr. Price was one of the leaders of a narcotics trafficking organization.

One of Mr. Price’s lawyers, Carl J. Herman, said in an interview on Friday that he received a phone call from a prosecutor late Thursday night informing him of the decision. He then told his client, who is being held in the Metropolitan Correctional Center in Manhattan.

Mr. Price, who has pleaded not guilty, could still be sentenced to life in prison if he is convicted, but he was pleased to hear that “his life is no longer hanging in the balance,” Mr. Herman said. “He had a big smile on his face and he shook my hand and he said, ‘It’s been a long time.’ ”

The Price case is not the first capital case over which Judge Garaufis has presided.

In March 2007, he imposed the death penalty on a Staten Island man, Ronell Wilson, who had been sentenced to death by a jury for killing two undercover police detectives in 2003. That case was the first successful federal death penalty prosecution in New York in more than 50 years.

Mr. Herman declined on Friday to speculate about why Mr. Mukasey had decided to reverse the earlier decision to seek the death penalty.

Spokesmen for Mr. Mukasey and Benton J. Campbell, the United States attorney in Brooklyn, declined comment on the decision, which prosecutors disclosed in a note to the judge on Friday.

Kevin McNally, a lawyer in Kentucky who is director of the Federal Death Penalty Resource Counsel Project, which provides information to defense lawyers in capital cases, called Mr. Mukasey’s decision significant.

“It suggests that toward the end of the Bush administration, some rationality has returned” to the Justice Department, he said.

In seeking capital punishment, prosecutors had cited claims like a lack of remorse by Mr. Price, the fact that the killing occurred in the course of a narcotics crime and the danger that Mr. Price could pose a continuing threat.

Mr. Herman said that the defense, in opposing capital punishment, cited factors like Mr. Price’s difficult childhood, a learning impairment and emotional problems. He added that Mr. Price had previously been tried for the murder in state court and was acquitted.

    U.S. Reverses Death Penalty Bid in Drug Case, NYT, 13.12.2008, http://www.nytimes.com/2008/12/13/nyregion/13death.html

Governor Is Held in Inquiry Into Filling Obama’s Seat

December 9, 2008
The New York Times
By MONICA DAVEY

Gov. Rod R. Blagojevich of Illinois was arrested by federal authorities on Tuesday morning and charged with corruption, including an allegation that he conspired to profit from his authority to appoint President-elect Barack Obama’s successor in the United States Senate, prosecutors said.

As Mr. Blagojevich, a Democrat, mulled the Senate appointment, prosecutors say, he discussed gaining “a substantial salary” at a nonprofit foundation or organization connected to labor unions, placing his wife on corporate boards where she might earn as much as $150,000 a year and trying to gain promises of campaign money, or even a cabinet post or ambassadorship, for himself.

A 76-page affidavit from the United States Attorney’s office in the Northern District of Illinois says Mr. Blagojevich (pronounced bluh-GOY-uh-vich) was heard on wiretaps over the last month planning to “sell or trade Illinois’ United States Senate seat vacated by Pres-elect Barack Obama for financial and personal benefits for himself and his wife.”

The charges are part of a five-year investigation into public corruption and allegations of “pay to play” deals in the clubby world of Illinois politics. Federal authorities said Mr. Blagojevich’s chief of staff, John Harris, was also indicted on Tuesday. Both men are expected to appear in federal court for the first time later Tuesday.

Mr. Blagojevich, a Democrat in his second term who came into office in 2002, portrayed himself as a reformer after the one-term of the former governor, George Ryan, who was convicted of racketeering and fraud in 2006.

For more than a year, members of Mr. Blagojevich’s administration have been under investigation. But few here have imagined that the decision on replacing Mr. Obama might have resulted in criminal charges.

In addition to the charges related to Mr. Obama’s Senate seat, Mr. Blagojevich is accused of crimes related to past behavior. As part of the charges, he is accused, prosecutors say, of working to gain benefits for himself, his family and his campaign fund in exchange for appointments to state boards and commissions.

Under Illinois law, Mr. Blagojevich has sole authority to fill the seat being vacated by Mr. Obama, who was elected to the Senate in 2004.

According to the indictment, while talking on the telephone about the Senate seat replacement with his chief of staff and an adviser, Mr. Blagojevich said he needed to consider his family and their financial struggles. “I want to make money,” he said, according to prosecutors. He then added, they allege, that he wanted to make $250,000 to $300,000 a year.

In a release, Patrick Fitzgerald, the prosecutor, said Mr. Blagojevich “put a for sale sign on the naming of a United States Senator.”

Mr. Blagojevich even contemplated stepping into the Senate himself, prosecutors said.

“I’m going to keep this Senate option for me a real possibility, you know, and therefore I can drive a hard bargain,” Mr. Blagojevich said in a recorded conversation with an adviser, according to the affidavit. “You hear what I’m saying. And if I don’t get what I want and I’m not satisfied with it, then I’ll just take the Senate seat myself.”

According to the affidavit from prosecutors, Mr. Blagojevich told an adviser last week that he might “get some (money) upfront, maybe” from one of the candidates hoping to replace Mr. Obama. That person was identified only as “Candidate 5.”

In an earlier recorded conversation, prosecutors say, Mr. Blagojevich said he was approached by an associate of “Candidate 5” with an offer of $500,000 in exchange for the Senate seat.

The authorities also say Mr. Blagojevich threatened to withhold state assistance from the Tribune Company, the publisher of the Chicago Tribune and Los Angeles Times, which filed for bankruptcy on Monday. According to the authorities, Mr. Blagojevich wanted members of the Tribune’s editorial board, who had criticized him, to be fired before he extended any state assistance.

An official at the governor’s office had no immediate comment on Tuesday. A telephone message left at Mr. Obama’s transition office was not immediately returned.
 

Jack Healy contributed from New York.

    Governor Is Held in Inquiry Into Filling Obama’s Seat, NYT, 9.12.2008, http://www.nytimes.com/2008/12/09/us/politics/10Illinois.html?hp

5 Blackwater Guards Charged With Manslaughter

December 8, 2008
By THE ASSOCIATED PRESS
The New York Times
Filed at 12:07 p.m. ET

WASHINGTON (AP) -- Five Blackwater Worldwide security guards surrendered on 14 counts of manslaughter and dozens of other charges Monday in connection with an investigation into a deadly 2007 shooting at a busy Baghdad intersection.

A sixth guard admitted in a plea deal to killing at least one Iraqi in the shooting, in which prosecutors say Blackwater guards used machine guns and grenade laucnhers on motorists and bystanders. His guilty plea, likewise, was unsealed Monday.

''The government alleges in the documents unsealed today that at least 34 unarmed Iraqi civilians, including women and children, were killed or injured without justification or provocation by these Blackwater security guards,'' national security prosecutor Pat Rowan said.

In addition to being charged with manslaughter, the five guards also face 20 counts of attempted manslaughter. They are also charged with using a machine gun to commit a crime of violence, a charge that carrries a 30-year minimum sentence.

Though they are charged in a sealed indictment in Washington, they surrendered at a federal courthouse in Salt Lake City.

Witnesses said the heavily armed U.S. contractors opened fire unprovoked at a crowded intersection. Blackwater, the largest security contractor in Iraq, says its guards were ambushed by insurgents while responding to a car bombing.

''We think it's pure and simple a case of self-defense,'' Paul Cassell, a Utah attorney on the defense team, said Monday as the guards were being booked. ''Tragically people did die.''

Though the case has already been assigned to U.S. District Judge Ricardo M. Urbina in Washington, attorneys want the case moved to Utah, where they would presumably find a more conservative jury pool and one more likely to support the Iraq war.

An afternoon court hearing was scheduled on whether to release the guards. Defense attorneys were filing court documents challenging the Justice Department's authority to prosecute the case. The law is murky on whether contractors can be charged in U.S. courts for crimes committed overseas.

The guards face the prospect of 30-year mandatory prison terms under the anti-machine gun law passed during the height of the crack cocaine epidemic.

The indicted guards are Donald Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn.; and Paul Slough, an Army veteran from Keller, Texas.

The sixth guard was identified as Jeremy Ridgeway.

The shooting strained relations between the U.S. and Baghdad. The fledgling Iraqi government wanted Blackwater, which protects U.S. State Department personnel, expelled from the country. It also sought the right to prosecute the men in Iraqi courts.

''The killers must pay for their crime against innocent civilians. Justice must be achieved so that we can have rest from the agony we are living in,'' said Khalid Ibrahim, a 40-year-old electrician who said his 78-year-old father, Ibrahim Abid, died in the shooting. ''We know that the conviction of the people behind the shooting will not bring my father to life, but we will have peace in our minds and hearts.''

Defense attorneys accused the Justice Department of bowing to Iraqi pressure .

''We are confident that any jury will see this for what it is: a politically motivated prosecution to appease the Iraqi government,'' said defense attorney Steven McCool, who represents Ball.

Based in Moyock, N.C., Blackwater is the largest security contractor in Iraq and provides heavily armed guards for diplomats. Since last year's shooting, the company has been a flash point in the debate over how heavily the U.S. relies on contractors in war zones.

----

Associated Press writers Jennifer Dobner and Paul Foy in Salt Lake City and Sameer N. Yacoub in Baghdad contributed to this report.

    5 Blackwater Guards Charged With Manslaughter, NYT, 8.12.2008, http://www.nytimes.com/aponline/washington/AP-Blackwater-Prosecution.html?hp

Blackwater Guard Charges Unsealed

December 8, 2008
Filed at 11:59 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Justice Department has unsealed a lengthy indictment charging five Blackwater Worldwide security guards with 14 counts of manslaughter and numerous other charges.

A sixth guard has admitted in a plea deal to killing at least one Iraqi in a deadly 2007 shooting in Baghdad.

The indictments cap a lengthy investigation into a shooting that strained diplomatic relations with Iraq and fueled anti-American sentiment abroad.

The Justice Department plans a news conference on the indictments later Monday.

    Blackwater Guard Charges Unsealed, NYT, 8.12.2008, http://www.nytimes.com/aponline/washington/AP-Blackwater-Prosecution.html?hp

5 Guards Face U.S. Charges in Iraq Deaths

December 6, 2008
The New York Times
By GINGER THOMPSON and JAMES RISEN

WASHINGTON — The Justice Department has obtained indictments against five guards for the security company Blackwater Worldwide for their involvement in a 2007 shooting in Baghdad that killed at least 17 Iraqi civilians and remains a thorn in Iraqi relations with the United States.

The indictments, obtained Thursday, remained sealed. But they could be made public in Washington as soon as Monday, according to people who have been briefed on the case and who spoke on condition of anonymity because the indictments had not been unsealed.

A sixth guard was negotiating a plea, those people said.

Peter A. Carr, a spokesman for the Justice Department, declined to comment on Friday. Anne E. Tyrrell, a spokeswoman for Blackwater, also declined to comment.

The six guards have been under investigation since the shootings occurred Sept. 16, 2007, as their convoy traveled through a traffic circle in Nisour Square that was filled with cars, pedestrians and police officers. The guards have told investigators that they fired after coming under attack. Blackwater has maintained that its guards did nothing wrong, and the company itself is not being charged in the case. Investigations by the Pentagon, the F.B.I. and the Iraqi government found no evidence to support the guards’ version of events.

Among those named in the indictment, according to the people briefed on the case, are Paul Slough, a 28-year-old who served in the Army Infantry and the Texas National Guard before joining Blackwater in 2006, and Dustin Heard of Tennessee, a former marine who joined Blackwater in 2004.

Those who have been briefed on the case said prosecutors could seek 30-year prison sentences under a Reagan-era antidrug law focusing on the use of machine guns in the commission of violent crimes. Drugs were not involved in the Blackwater case.

Mark Hulkower, Mr. Slough’s lawyer, would not confirm whether his client was one of those indicted. But if he is, Mr. Hulkower said, “We will contest the charges in court, and we are confident he will be vindicated.”

The Nisour Square shootings have had a profound impact in Iraq, both on the role of contractors in the war zone and on the Baghdad government’s relationship with the Bush administration. The episode was the bloodiest in a series of violent events involving Blackwater and other American security contractors that had stoked anger and resentment among Iraqis.

Founded in 1997 by Erik Prince, a former member of the Navy Seals and heir to a family fortune made in the auto parts industry, Blackwater had developed a reputation among Iraqis and American military personnel for flaunting an aggressive, quick-draw image and for security personnel who took excessively violent actions to protect the people they were paid to guard.

In December 2006, a Blackwater guard who was off duty and reportedly drinking heavily was reported to have shot a bodyguard for an Iraqi vice president in Baghdad. In 2007, the State Department acknowledged that Blackwater had been involved in many more shootings than the two other security contractors in other regions of Iraq.

But the Nisour Square episode prompted so much protest that Iraq’s prime minister, Nuri Kamal al-Maliki, demanded that the Bush administration pull Blackwater out of the country.

In a profile of Mr. Slough, The New York Times reported this year that he had used dry military language to explain to investigators that he fired his weapon only at targets who posed immediate threats to his life and to those of his colleagues.

He described fighting his way out of a terrifying ambush that began when the driver of a white, four-door sedan ignored numerous hand signals and drove directly at the Blackwater motorcade. And he described muzzle flashes from a shack about 160 feet behind the car, a man in a blue button-down shirt and black pants pointing an AK-47, small-arms fire from a red bus stopped in an intersection, and a red car backing up toward his convoy.

“I engaged the individuals,” Mr. Slough told investigators, “and stopped the threat.”

The F.B.I. concluded that at least 14 of the 17 fatal shootings in Nisour Square were unjustified, saying that Blackwater guards recklessly violated American rules for the use of lethal force. Military investigators went further, saying that all of the deaths were unjustified and potentially criminal. Iraqi authorities characterized the incident as “deliberate murder.”

Still, the guards could not be prosecuted under Iraqi law because of an immunity agreement signed by the Coalition Provision Authority, the governing authority installed by American troops after the invasion. And legal experts have long pointed out that the case faces significant legal hurdles in American courts, which have only vague powers to prosecute Americans for crimes committed abroad.

Immunity for security contractors became a central issue this year in the negotiations between Iraq and the United States over an agreement setting out the terms under which American troops could remain in Iraq. Iraqi officials repeatedly demanded an end to legal immunity for American contractors. The Bush administration eventually agreed, and tens of thousands of contractors will be held responsible for their actions under Iraqi law at the start of next year.

    5 Guards Face U.S. Charges in Iraq Deaths, NYT, 6.12.2008, http://www.nytimes.com/2008/12/06/washington/06blackwater.html?hp

Editorial

The Next Attorney General

December 3, 2008
The New York Times
 

If he is confirmed by the Senate as attorney general, Eric Holder, President-elect Barack Obama’s choice for the job, will inherit a Justice Department that has been mired in scandal and that has seriously lost its way in critical areas. Under President Bush, the department has been used to defend the indefensible, like indefinite detention and torture of prisoners, and to undermine rather than protect Americans’ cherished rights. Mr. Holder could be an exemplary choice to face this daunting agenda, but he must answer serious questions before the Senate votes on his confirmation.

Mr. Holder, who would be the first African-American attorney general, has a particularly good record of public service for this job. He has been a United States attorney for the District of Columbia, a prosecutor in the Justice Department’s public integrity section and a deputy attorney general under President Bill Clinton.

He has been outspoken on the most critical issue facing the department: restoring the rule of law. In a speech in June, he described the Bush administration’s anti-terrorism policies as “excessive and unlawful.” And he has called for closing the prison in Guantánamo Bay, Cuba.

But senators should ask Mr. Holder to square those views with comments he made after the Sept. 11 attacks when he defended the Bush administration’s prisoner policies by declaring that “you can think of these people as combatants and we are in the middle of a war.”

Americans need to know that Mr. Holder does not believe that detainees can be held indefinitely without being brought before a judge — and that he would stand up for the Constitution when times are tough.

There are other aspects of Mr. Holder’s record that are of concern, starting with his role in Mr. Clinton’s pardon of Marc Rich, a billionaire financier who had fled the country rather than face federal tax-evasion charges whose ex-wife, Denise Rich, had contributed heavily to the Clinton presidential library and the Democratic Party.

The Senate needs to probe that serious lapse in judgment closely to seek assurances that Mr. Holder will be unyielding about keeping political influence out of the Justice Department, which was shamefully politicized under Alberto Gonzales.

In addition to signing off on torture memos and depriving detainees of basic rights, the Bush Justice Department adopted legal positions that greatly expanded executive power. These policies must be quickly undone. The next attorney general also will have to get to the bottom of the department’s disgraceful record of politicized hiring and firing. The attorney general will need to ensure that the investigation of the firings of United States attorneys for what appear to be partisan reasons is thorough and credible, and that witnesses who have been defying subpoenas, including Karl Rove and Harriet Miers, the former White House counsel, testify under oath.

There already are people — mainly Republicans — who say investigating these matters would be divisive. But the department’s integrity cannot be restored until the truth comes out and any wrongdoers are punished.

Many parts of the Justice Department must be pointed in a new direction. In the Bush years, the voting rights section worked against voting rights. The civil rights division too often sat idly by, or supported the wrong side, when rights were infringed. The antitrust division all but abandoned its responsibility to protect the public from the harm of monopoly power.

The attorney general is the nation’s top law enforcement official. The Senate must make sure that Mr. Holder is committed to the right kind of change in that job.

    The Next Attorney General, NYT, 3.12.2008, http://www.nytimes.com/2008/12/03/opinion/03wed1.html

Verdict in MySpace Suicide Case

November 27, 2008
The New York Times
By JENNIFER STEINHAUER

LOS ANGELES — A federal jury here issued what legal experts said was the country’s first cyberbullying verdict Wednesday, convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide.

The jury deadlocked on a fourth count of conspiracy against the woman, Lori Drew, 49, and the judge, George H. Wu of Federal District Court, declared a mistrial on that charge.

Although it was unclear how severely Ms. Drew would be punished — the jury reduced the charges to misdemeanors from felonies, and no sentencing date was set — the conviction was highly significant, computer fraud experts said, because it was the first time that a federal statute designed to combat computer crimes was used to prosecute what were essentially abuses of a user agreement on a social networking site.

Under federal sentencing guidelines, Ms. Drew could face up to three years in prison and $300,000 in fines, though she has no previous criminal record. Her lawyer has asked for a new trial.

In a highly unusual move, Thomas P. O’Brien, the United States attorney in Los Angeles, prosecuted the case himself with two subordinates after law enforcement officials in Missouri determined Ms. Drew had broken no local laws.

Mr. O’Brien, who asserted jurisdiction on the ground that MySpace is based in Los Angeles, where its servers are housed, said the verdict sent an “overwhelming message” to users of the Internet.

“If you are going to attempt to annoy or go after a little girl and you’re going to use the Internet to do so,” he said, “this office and others across the country will hold you responsible.”

During the five-day trial, prosecutors portrayed Ms. Drew as working in concert with her daughter, Sarah, who was then 13, and Ashley Grills, a family friend and employee of Ms. Drew’s magazine coupon business in Dardenne Prairie, Mo.

Testimony showed that they created a teenage boy, “Josh Evans,” as an identity on MySpace to communicate with Sarah’s nemesis, Megan Meier, who was 13 and had a history of depression and suicidal impulses.

After weeks of online courtship with “Josh,” Megan was distressed one afternoon in October 2006, according to testimony at the trial, when she received an e-mail message from him that said, “The world would be a better place without you.”

Ms. Grills, who is now 20, testified under an immunity agreement that shortly after that message was sent, Megan wrote back, “You’re the kind of boy a girl would kill herself over.” Megan hanged herself that same afternoon in her bedroom.

Although the jury appeared to reject the government’s contention that Ms. Drew had intended to harm Megan — a notion underlying the felony charges — the convictions signaled the 12 members’ belief that she had nonetheless violated federal laws that prohibit gaining access to a computer without authorization.

Specifically, the jury found Ms. Drew guilty of accessing a computer without authorization on three occasions, a reference to the fraudulent postings on MySpace in the name of Josh Evans.

Legal and computer fraud experts said the application of the federal Computer Fraud and Abuse Act, passed in 1986 and amended several times, appeared to be expanding with technology and the growth of social networking on the Internet. More typically, prosecutions under the act have involved people who hack into computer systems.

“Keep in mind that social networking sites like MySpace did not exist until recently,” said Nick Akerman, a New York lawyer who has written and lectured extensively on the act. “This case will be simply another important step in the expanded use of this statute to protect the public from computer crime.”

Other computer fraud experts said they found the verdict chilling.

“As a result of the prosecutor’s highly aggressive, if not unlawful, legal theory,” said Matthew L. Levine, a former federal prosecutor who is a defense lawyer in New York, “it is now a crime to ‘obtain information’ from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it.”

Ms. Drew, who showed little emotion during the trial, sat stone-faced as the clerk read the jury’s verdict and left the courtroom quickly, her face red and twisted with rage.

Her lawyer, H. Dean Steward, said outside the courthouse that he believed the trial was grandstanding by Mr. O’Brien in an effort to keep his job, with the coming change in the White House.

“I don’t have any satisfaction at all,” Mr. Steward said of the verdict.

Judge Wu scheduled a hearing on the request for a new trial for late December.

Since the story surrounding the suicide became public last year, Mr. O’Brien has discussed with his staff how his feelings as a parent motivated him to bring the charges against Ms. Drew. He alluded to those feelings on Wednesday at a news conference.

“This was obviously a case that means a lot to me,” he said.

The case has been a collection of anomalies. Judge Wu appeared ambivalent regarding some key issues at the trial, like whether any testimony about Megan’s suicide would be allowed (he did allow it) and how to rule on a defense motion to throw out the charges (he had not ruled as of Wednesday).

Judge Wu was appointed to the federal bench less than two years ago, and it is difficult to establish his sentencing record. But Mr. Akerman, the computer fraud expert, said jail time was common even for first-time offenders in computer fraud cases.

“If I were her,” he said of Ms. Drew, “I would not be celebrating over the Thanksgiving weekend.”

Tina Meier, Megan’s mother, said in a news conference after the verdict that she hoped Ms. Drew would serve jail time, and that she felt satisfied.

“This day is not any harder than the day when I found Megan,” Ms. Meier said. “This has never been about vengeance. This is about justice. For me it’s absolutely worth it every single day sitting in that court hoping there was justice.”

    Verdict in MySpace Suicide Case, NYT, 27.11.2008, http://www.nytimes.com/2008/11/27/us/27myspace.html

Five Convicted in Terrorism Financing Trial

November 25, 2008
The New York Times
By GRETEL C. KOVACH

DALLAS — On their second try, federal prosecutors won sweeping convictions Monday against five leaders of a Muslim charity in a retrial of the largest terrorism-financing case in the United States since the attacks of Sept. 11, 2001.

The five defendants, all leaders of the Holy Land Foundation for Relief and Development, based in Richardson, a Dallas suburb, were convicted on all 108 criminal counts against them, including support of terrorism, money laundering and tax fraud. The group was accused of funneling millions of dollars to the Palestinian militant group Hamas, an Islamist organization the government declared to be a terrorist group in 1995.

“Money is the lifeblood of terrorism,” Richard B. Roper, the United States attorney whose office prosecuted the case, said Monday in a statement. “The jury’s decision demonstrates that U.S. citizens will not tolerate those who provide financial support to terrorist organizations.”

The defendants argued that the Holy Land Foundation, once the largest Muslim charity in the United States, was engaged in legitimate humanitarian aid for community welfare programs and Palestinian orphans.

The jury, which deliberated for eight days, reached a starkly different result than the jury in the first trial, which ended in a mistrial on most charges in October 2007, after nearly two months of testimony and 19 days of deliberations.

The government shuttered the Holy Land Foundation in December 2001 and seized its assets, a move President Bush heralded at the time as “another step in the war on terrorism.”

The charity’s leaders — Ghassan Elashi, Shukri Abu-Baker, Mufid Abdulqader, Abdulrahman Odeh and Mohammad El-Mezain — were not accused in the 2004 indictment of directly financing suicide bombings or terrorist violence. Instead, they accused of illegally contributing to Hamas after the United States designated it a terrorist group.

The defendants could be sentenced to 15 years on each count of supporting a terrorist group, and 20 years on each count of money laundering. Leaders of the foundation, which is now defunct, might also have to forfeit millions of dollars.

Khalil Meek, a longtime spokesman for a coalition of Holy Land Foundation supporters called Hungry for Justice, which includes national Muslim and civil rights groups, said supporters were “devastated” by the verdict.

“We respect the jury’s decision, but we disagree and we think the defendants are completely innocent,” Mr. Meek said. “For the last two years we’ve watched this trial unfold, and we have yet to see any evidence of a criminal act introduced to a jury. This jury found that humanitarian aid is a crime.”

He added, “We intend to appeal the verdict, and we remain convinced that we will win.”

The prosecutor, Barry Jonas, told jurors in closing arguments last week that they should not be deceived by the foundation’s cover of humanitarian work, describing the charities it financed as terrorist recruitment centers that were part of a “womb to the tomb” cycle.

After the mistrial last year, critics said the government had offered a weak, complicated case and had failed to recognize that juries were not as quick to convict Muslim defendants accused of supporting terrorism as they had once been. Prosecutors spent more time in the second trial explaining the complexities of the case and painting a clearer picture of the money trail. They also dropped many of the original charges.

“Today’s verdicts are important milestones in America’s efforts against financiers of terrorism,” Patrick Rowan, assistant attorney general for national security, said in a statement. Mr. Rowan added that the prosecution “demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups.”

Nancy Hollander, a lawyer from Albuquerque who represented Mr. Abu-Baker, said the defendants would appeal based on a number of issues, including the anonymous testimony of an expert, which she said was a first.

“Our clients were not even allowed to review their own statements because they were classified — statements that they made over the course of many years that the government wiretapped,” Ms. Hollander said. “They were not allowed to go back and review them. There were statements from alleged co-conspirators that included handwritten notes. Nobody knew who wrote them; nobody knew when they were written. There are a plethora of issues.”

Noor Elashi, a 23-year-old writer who is the daughter of Ghassan Elashi, said she was “heartbroken” that jurors had accepted what she called the fear-mongering of the prosecution.

“I am utterly shocked at this outcome,” Ms. Elashi said. “This is a truly low point for the United States of America.” She said supporters would not rest until the verdict was overturned.

“My dad is a law-abiding citizen who was persecuted for his humanitarian work in Palestine and his political beliefs,” Ms. Elashi said. “Today I did not shed a single tear. My dad’s smile was radiant. That’s because he saved lives, and now he’s paying the price.”

According to freedomtogive.com, a Web site that calls itself the voice of the defendants’ relatives and friends, the foundation “simply provided food, clothes, shelter, medical supplies and education to the suffering people in Palestine and other countries.”

    Five Convicted in Terrorism Financing Trial, NYT, 25.11.2008, http://www.nytimes.com/2008/11/25/us/25charity.html?hp

Appeals Court Backs Warrantless Searches Abroad

November 25, 2008
The New York Times
By BENJAMIN WEISER

A federal appeals court in Manhattan upheld the convictions on Monday of three Al Qaeda operatives in a ruling that bolsters the government’s power to investigate terrorism by holding that a key Constitutional protection afforded to Americans does not apply overseas.

The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit holds for the first time that government agents may obtain admissible evidence against United States citizens through warrantless searches abroad.

The searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote, adding that the government had met that standard in its search of the home and monitoring of the telephone of one defendant, Wadih El-Hage, a close aide to Osama bin Laden, who was a naturalized American citizen living in Nairobi, Kenya.

“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.

Mr. El-Hage and two other defendants had appealed their convictions for participating in a terrorism conspiracy, led by Mr. bin Laden, to kill Americans around the world. The conspiracy included the 1998 bombings of two American embassies, in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands. They were convicted in Manhattan federal court in 2001 in the last major terrorism trial in the United States before the Sept. 11 attacks.

The two other defendants whose convictions were upheld were Mohamed Rashed Daoud al-’Owhali and Mohammed Saddiq Odeh. A fourth defendant, Khalfan Khamis Mohamed, did not appeal his conviction. The men were convicted in a federal trial in Manhattan in early 2001. All four men are serving life sentences in the so-called Super Max prison in Florence, Colo.

The ruling, joined by Judges Jon O. Newman and Wilfred Feinberg, is divided into three separate opinions, which total 178 pages.

“This criminal case presents issues of great importance, many of which are complex and novel,” Judge Cabranes wrote, noting that the case had been in the courts for a decade.

    Appeals Court Backs Warrantless Searches Abroad, NYT, 25.11.2008, http://www.nytimes.com/2008/11/25/nyregion/25embassy.html?hp

Judge Declares Five Detainees Held Illegally

November 21, 2008
The New York Times
By WILLIAM GLABERSON

A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The habeas corpus case was an important test of the administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

The judge also ruled that a sixth Algerian man was being lawfully detained because he was a facilitator for Al Qaeda, arranging travel for others to fight the United States, and planned to become a fighter himself.

The six men are among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits.

A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.

Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.

Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was “to superimpose the habeas corpus process into the world of intelligence gathering.”

He said his decision, which involved men first detained in Bosnia far from the war in Afghanistan, should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases. “This is a unique case,” he said.

Still, there was a buzz in the gallery when he announced that the government had not proved its case against the five men. In urging the government not to continue to fight the case, he noted that an appeal could take as long as two years.

“Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty,” he said.

The men listened to the proceedings over a phone line from Guantánamo. If the government appeals they could remain there indefinitely. If it does not, one of their lawyers, Stephen H. Oleskey, said he expected that they would return to Bosnia, where they would be freed.

In a statement, the Justice Department did not say whether it would appeal, only that it was reviewing the case. It added that the ruling was “perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.”

Robert C. Kirsch, one of the six detainees’ lawyers from the law firm Wilmer Hale, said the case showed “the human cost of what can happen when mistakes are made at the highest levels of our government, and no one has the courage to acknowledge those mistakes.”

Lawyers for other detainees said the decision was a repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, to avoid scrutiny by American judges. President-elect Barack Obama has promised to close the prison.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents detainees.

But Andrew C. McCarthy, a former federal terrorism prosecutor, said the decision highlighted the difficulties of courts’ reviewing wartime decisions about who qualifies as an enemy combatant. Mr. McCarthy said those were decisions “our system of divided powers consigns to military professionals in the executive branch, not judges.”

The five men who were ordered freed included Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named. The one detainee Judge Leon found to be lawfully held, Bensayah Belkacem, has been described by intelligence agencies as the leading Qaeda operative in Bosnia.

Judge Leon said there had been some corroborating evidence that linked Mr. Bensayah to a “senior Al Qaeda facilitator.”

The case against the six men has become an example of the Bush administration’s pattern of changing strategy in its legal defense of Guantánamo.

In 2002, Mr. Bush made the accusations against the six men a showcase. He said in his State of the Union address that they had been planning a bomb attack on the American Embassy in Sarajevo, Bosnia. But last month, Justice Department lawyers said they were no longer relying on those accusations.

The Guantánamo habeas corpus cases have moved slowly despite a directive by the Supreme Court that judges should act quickly after nearly seven years of detention for many of the 250 men still held in Guantánamo.

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo had failed. But, he said, “Justice comes too late for these five men.”

This week, the Justice Department filed motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding. Department lawyers argued that there were flaws in the ground rules for the Guantánamo cases that would require the government to reveal classified evidence.

Last month, another federal judge in Washington, Ricardo M. Urbina, ordered the release of 17 ethnic Uighur detainees from China. But Judge Urbina did not hold a hearing on the evidence because the government conceded that the men were not enemy combatants, and said it was continuing to hold the Uighurs because it could not find a country willing to accept them.

The Justice Department is appealing Judge Urbina’s ruling. Arguments are scheduled for Monday in the United States Courts of Appeals in Washington.
 

Bernie Becker contributed reporting.

    Judge Declares Five Detainees Held Illegally, NYT, 21.11.2008, http://www.nytimes.com/2008/11/21/us/21guantanamo.html?hp

Murder Suspect Has Witness: A MetroCard

November 19, 2008
The New York Times
By BENJAMIN WEISER

When Jason Jones was arrested in a fatal shooting in the Bronx in May, he told the police that he had been nowhere near the scene. He said he had left work, ridden the bus with some co-workers and cashed his paycheck, and later had taken a subway to see his girlfriend.

Federal prosecutors charged Mr. Jones and his older brother, Corey, in the shooting, saying they had killed the victim because he had been a government witness in drug and gun cases. Both men could face the death penalty if the government decides to seek it.

But in recent weeks, the case has taken an extraordinary turn — because of Jason Jones’s MetroCard.

Months after the arrests, a retired detective working for Mr. Jones’s lawyers drove to a city jail located on a barge moored in the East River in the South Bronx, where Mr. Jones had been held after his arrest, and retrieved his wallet. The MetroCard was still inside.

Mr. Jones’s lawyers then asked New York City Transit to use the card to trace his movements the night of the shooting. The results supported his account, showing that the card had been used on a bus, and later on a subway roughly five miles from the shooting, just as he had described.

With that, and a photograph snapped of Mr. Jones, 26, as he cashed his paycheck, his lawyers argued that it was impossible for him to have committed the crime. Both brothers have been released on bond for now, an unusual step in a federal murder case, while prosecutors say they are continuing to investigate.

Mr. Jones’s turn of fortune might not have been possible before the modern era, where the plastic MetroCards, along with E-ZPass and surveillance cameras, have become ubiquitous.

Critics have said that the devices, for all their convenience, have ushered in an era of Big Brother, but they have nonetheless become useful in legal proceedings, whether to prove or undermine an alibi, find a missing person or even track a cheating spouse.

The MetroCard, used when boarding New York City buses and entering subway stations, has a magnetic strip that records the amount of money or time left on the card. Centralized computers also store data on where and when the cards are used, retrieving the information from buses and subway turnstiles.

The transit agency said that it receives requests from time to time to trace card information from the police, prosecutors and defense lawyers, but that it does not follow up on how those cases turn out.

In at least one instance, a MetroCard helped lead to a conviction. In 2002, on Staten Island, a man was found guilty of murdering his ex-girlfriend after the police used his MetroCard to prove that he was not on a bus when the killing occurred, as he claimed, but had in fact boarded it shortly afterward.

“Electronic evidence has become almost as important as DNA evidence,” said James B. Dowd, the retired detective who recovered the MetroCard from jailhouse storage.

The Jones brothers were arrested after a witness identified them as being involved in the murder of a man shortly after midnight on May 24, at Ogden Avenue and West 165th Street in the High Bridge section of the Bronx.

The witness, who has not been identified, said Corey Jones was arguing with the man and accused him of being a “snitch.” A short time later, the witness said, Corey handed Jason a gun, and Jason fired shots, killing the man. A call to 911 was made at 12:21 a.m., records show.

The Jones brothers already had a spotted past. Corey had convictions in two drug cases, Jason in a drug case and for stealing a car.

But both brothers have denied any involvement in the shooting, and Jason Jones said in an interview that when he was taken for questioning, he made it clear to the police that he could not have been involved.

“I told them they had the wrong person,” he said. “I was not there.”

During the interrogation, he said, it occurred to him that he had used his MetroCard on the bus and the subway, and he asked the police to check it. A detective took the card briefly, and then gave it back to him, and there was no further discussion about the card, he said.

The MetroCard came up again when Mr. Jones’s own lawyers debriefed him.

“Jason, from the outset, had a very good memory of where he had been,” George R. Goltzer, one of his lawyers, recalled.

The lawyers asked Mr. Dowd, the private investigator, to check out Jason Jones’s story.

Mr. Dowd drove to a manufacturing plant in Yonkers, where Mr. Jones had a temporary job as a forklift operator. A printout of his hours showed that on May 23, the night of the killing, he had punched out at 11:01 p.m.

Mr. Jones had said that he and several co-workers then boarded a No. 20 Bee-Line bus near Central Park Avenue and Tuckahoe Road and rode into the Bronx, where they stopped at a check-cashing outlet, Pay-O-Matic, near Montefiore Medical Center.

When Mr. Dowd visited Pay-O-Matic, he learned not only that it had a copy of Mr. Jones’s check, but that it took photographs of customers.

“Everything was time stamped,” Mr. Dowd recalled. A photograph shows Mr. Jones cashing his check at 11:39 p.m.

Mr. Dowd said Pay-O-Matic also had a photo of one of Mr. Jones’s co-workers cashing a check, in which Mr. Jones was visible in the background. That further corroborated his story that he had had been with his co-workers that night.

But Mr. Dowd still needed one more piece of evidence — the MetroCard.

Mr. Jones said that after cashing the check, he and his co-workers had walked to a friend’s apartment for a drink, and that he had then entered the 205th Street station on the D Line, less than a mile from the check-cashing outlet and about five miles from the shooting scene. He rode the train to 182nd Street to visit his girlfriend, he said, stayed with her until about 2 a.m., and then took a subway home.

After the investigator retrieved the MetroCard from the jail, Frederick H. Cohn, Mr. Jones’s other lawyer, called New York City Transit and asked to have the card’s history traced. “I said, ‘Well, how long is this going to take?’ ” Mr. Cohn recalled.

He said the employee said it would take three months. “She said, ‘We’re very busy. We’ve got all these requests.’ ”

Mr. Cohn said he pleaded: “We’ve got a guy who’s sitting in jail, and this is critical evidence.”

The request came back within days. Using the serial number of Mr. Jones’s seven-day unlimited MetroCard, the transit agency was able to report that Mr. Jones’s card had been used three times that night — on the No. 20 bus (the Bee-Line, the Westchester County bus system, accepts MetroCards) at 11:12 p.m.; at the 205th Street station at 12:30 a.m.; and at the 182nd-183rd Street station at 2 a.m. — all as he had said.

Mr. Jones’s lawyers say it would have physically impossible for him to commit the crime and be where his MetroCard was used. They say the card was in his possession the whole time.

Once presented with the new information, prosecutors agreed that Mr. Jones could be released on bond.

But they objected strenuously when lawyers for his brother made a similar request. The prosecutors said that their witness might have been wrong about Jason, but had correctly identified Corey.

The judge, Victor Marrero of Federal District Court in Manhattan, earlier had refused to grant bail to Corey Jones, even after several witnesses said he had been with them at the time of the shooting. But, in a hearing last month, Judge Marrero suggested the new information could not be ignored.

“It seems somewhat implausible,” he said, that the government’s witness saw the event and was “right about one and mistaken about the other.”

The judge granted Corey Jones bail. Prosecutors have not dropped the charges, and said in court last month that their investigation was continuing. They declined to comment about the case outside court.

In his ruling, Judge Marrero paraphrased a saying about change by the Greek philosopher Heraclitus. The judge wrote: “The river now flowing by is not the same river that passed by yesterday.”

    Murder Suspect Has Witness: A MetroCard, NYT, 19.11.2008, http://www.nytimes.com/2008/11/19/nyregion/19metrocard.html

Judge Opens First Habeas Corpus Hearing on Guantánamo Detainees

November 7, 2008
The New York Times
By WILLIAM GLABERSON

WASHINGTON — After years of legal clashes over whether detainees have the right to contest their detention in court, a federal judge on Thursday opened the first hearing into the government’s justification for holding suspects at the naval base at Guantánamo Bay, Cuba.

But after opening statements that did not detail the evidence, the judge, Richard J. Leon of Federal District Court here, closed the courtroom, saying the evidence was classified. The government says the six men whose cases are being heard were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

“The discussion of these issues will have to take place in a closed courtroom outside the presence of the public and the detainees,” Judge Leon said. The hearing is expected to last a week.

If the men testify, that “will also have to be behind closed doors because of the sensitivity of whatever it is they might say,” he said.

In addition, the detainees’ lawyers have not been permitted to discuss the classified evidence with their clients, six Algerian former residents of Bosnia who have been held since 2002.

Their case was the first to reach a factual hearing since the Supreme Court ruled in June that detainees at Guantánamo are entitled to seek their freedom through federal habeas corpus cases. The justices’ ruling, which was named for one of the six Algerians, Lakhdar Boumediene, opened the door for more than 200 habeas corpus claims.

Judge Leon, who was appointed by President Bush, initially ruled in 2005 that the men had no habeas corpus rights.

The six detainees had been scheduled to listen to opening statements from Guantánamo by way of a telephone hookup, but a technical problem left them with a silent line, court officials said. If they testify, it is to be with a video feed from Guantánamo.

After they were detained in 2002, Mr. Bush said the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. But last month Department of Justice lawyers said they were no longer relying on those accusations to justify the men’s detention.

In an opening statement before the courtroom was closed, Nicholas A. Oldham, a Department of Justice lawyer, said “the United States has reliable information” about the dangers posed by the men. But Mr. Oldham said, “I cannot talk about the evidence here,” in the open courtroom.

Stephen H. Oleskey, one of the detainees’ lawyers, said the men were “victims of a terrible mistake that the government has refused even today to correct.”

Mr. Oleskey said the government’s accusations were based on what he described as ethnic profiling of Muslim men. He said the government could not prove that the men considered going to Afghanistan. But he added, “Even loose talk about plans to travel to Afghanistan would be just that: loose talk.”

Mr. Oleskey declined to discuss the plan to close the courtroom.

But Ramzi Kassem, a lawyer who represents other detainees and who teaches at Yale Law School, said the use of classified evidence was an effort to keep the public from being able to assess the evidence the government has used to imprison hundreds of men.

“I think what is happening here,” Mr. Kassem said, “is that the government lost its battle to avoid judicial scrutiny, so they have shifted strategy to avoid public scrutiny.”

A Justice Department spokesman said lawyers in the case had no role in classifying evidence, adding that it had been classified by intelligence agencies “for valid national security reasons — well before preparation for this case even began.”

Judge Leon, wearing a red and white bow tie set against a blue shirt that peeked through his robes, was the first federal judge to hold a full habeas corpus hearing on a Guantánamo case since the Supreme Court ruling in June.

Another federal judge, Ricardo M. Urbina, last month ordered 17 ethnic Uighur detainees released. But in that case, no hearing was needed to establish the reason for their detention because the government conceded that the men were not enemy combatants. A federal appeals court stayed Judge Urbina’s ruling pending an appeal.

In the case that began Thursday, government lawyers appear to be taking few chances that the men will be freed.

They have filed a sealed envelope of evidence with Judge Leon, which the detainees’ lawyers have not been permitted to see. In court filings the government lawyers said that if the evidence in the closed hearings was not enough to justify the detention, then the judge should open the envelope.

Judge Leon, the filing said, “may very well ultimately face the circumstance where the information justifying detention is too sensitive” to share not only with the detainees but also with their lawyers.

    Judge Opens First Habeas Corpus Hearing on Guantánamo Detainees, NYT, 7.11.2008, http://www.nytimes.com/2008/11/07/washington/07gitmo.html

No U.S. Prostitution Charges for Spitzer

November 7, 2008
The New York Times
By DANNY HAKIM and WILLIAM K. RASHBAUM

Former Gov. Eliot Spitzer will not face criminal charges for patronizing a high-priced prostitution ring, federal prosecutors announced on Thursday.

The announcement, a five-paragraph statement from Michael J. Garcia, the United States attorney in Manhattan, ended almost eight months of uncertainty for the disgraced governor, whose lawyers had been quietly making their case to the country’s most prominent prosecutor’s office that he ought not be charged. And it ended the possibility that Mr. Spitzer, once an aggressive prosecutor himself, would have his private life explored in a public criminal case.

Mr. Spitzer resigned as governor in March, two days after The New York Times reported that he had been a customer of the Emperor’s Club V.I.P., a prostitution service that charged as much as $5,500 an hour.

Mr. Garcia said in the statement that his office had found that “on multiple occasions, Mr. Spitzer arranged for women to travel from one state to another state to engage in prostitution.” But the prosecutors found no evidence that Mr. Spitzer had used public money or campaign funds to pay for his encounters with prostitutes, he said.

“We have determined that there is insufficient evidence to bring charges against Mr. Spitzer,” Mr. Garcia said in the statement. “In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this office, as well as Mr. Spitzer’s acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter.”

The policy, detailed in the Justice Department’s manual for United States attorneys on how to carry out their duties, advises that unless minors are victims, prosecutions “should generally be limited to persons engaged in commercial prostitution activities.”

While Mr. Spitzer has now been cleared, Yusill Scribner, a spokeswoman for Mr. Garcia’s office, would not say whether the decision not to bring charges signaled an end to the overall investigation, which began late last year and was conducted by the F.B.I. and the Internal Revenue Service.

In a statement released minutes after the United States attorney’s announcement, Mr. Spitzer said: “I appreciate the impartiality and thoroughness of the investigation by the U.S. attorney’s office, and I acknowledge and accept responsibility for the conduct it disclosed.

“I resigned my position as governor because I recognized that conduct was unworthy of an elected official.”

“I once again apologize for my actions,” he said in the statement, “and for the pain and disappointment those actions caused my family and the many people who supported me during my career in public life.”

Mr. Spitzer, reached later on his cellphone, said that he would have no comment beyond the statement. Michele Hirshman, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who is Mr. Spitzer’s lead counsel, declined comment on Mr. Garcia’s decision through a spokeswoman.

The announcement by Mr. Garcia, a Republican who has served as the United States attorney for the Southern District for three years, comes as he prepares to leave the post for private work.

An announcement in the case, which earlier in the year had drawn criticism from some Democrats who suggested that it was politically motivated, was expected to follow the election, although perhaps not so rapidly.

Several people briefed on the case said that in recent months, Mr. Spitzer’s team of lawyers made several presentations to prosecutors from the Public Corruption unit in Mr. Garcia’s office and their superiors to argue against charges.

The presentations, they said, focused on the defense team’s argument that no campaign money or state funds were involved, that Mr. Spitzer did not illegally structure the transactions to pay the prostitutes, and that charges were not warranted under the Mann Act, which prohibits transporting people across state lines for the purpose of prostitution.

Mr. Spitzer, the square-jawed crusader who promised to bring ethics to Albany, was elected governor in 2006 by a wide margin after eight years as state attorney general. A Democrat, he made his reputation as a prosecutor who tackled white-collar corruption so single-mindedly that people nicknamed him “the sheriff of Wall Street,” and his admirers hoped the State Capitol would be a steppingstone to national office.

But then, after he had been governor for little more than a year, a federal affidavit surfaced that said Mr. Spitzer, identified only as Client 9, had arranged for a rendezvous with a high-priced prostitute in Washington on the night before Valentine’s Day.

The allegation rocked the political world. Mr. Spitzer, a product of Princeton University and Harvard Law School, had seemed so strait-laced. As attorney general, he had overseen a task force that prosecuted a prostitution ring that operated behind corporate fronts and escort services.

Mr. Spitzer, who had reinvented the office of attorney general, struggled to adjust to being governor, frequently warring with members of the Legislature.

“Obviously, he’s yesterday’s news,” Senator George H. Winner Jr., an upstate Republican, said on Thursday. “Perhaps now we don’t have to hear about him in the news anymore.” Mr. Winner added, “He disillusioned an awful lot of people.”

It remains unclear why it took Mr. Garcia’s office nearly eight months to come to its decision, and a spokeswoman for the office would not go beyond the statement released Thursday afternoon.

A lawyer for a woman who booked clients for the prostitution ring said he believed the decision not to charge Mr. Spitzer meant that the government would not press for prison time for his client, Temeka Rachelle Lewis, 32. “It would be plainly inconsistent with the government’s decision today to do otherwise,” said the lawyer, Marc Agnifilo.

Under an agreement with the government that obligated her to testify if prosecutors called her before a federal grand jury, Ms. Lewis pleaded guilty in May to charges of promoting prostitution and money laundering. Her sentencing was scheduled for December, but the government’s lawyers recently said that they wanted to postpone it. No new date has been set.

Michael C. Farkas, who represents Tania Hollander, who worked part time as a booker for the Emperor’s Club V.I.P. and pleaded guilty to a federal prostitution conspiracy charge in August, suggested it was unfair that Mr. Spitzer would face no charges while his client faced possible jail time. Mr. Farkas said Ms. Hollander had played the smallest role of the four people charged.

“Tania Hollander has also ‘accepted responsibility’ for and ‘acknowledged’ her very minor role in this enterprise to the U.S. attorney’s office since the earliest stages of this case,” Mr. Farkas said in an e-mail message. “She has offered her full cooperation as well. Despite these facts, she still faces a jail sentence, while some other more infamous actors in this matter do not. It would be a sad injustice if that were to occur.”

But Murray Richman, the lawyer for Mark Brener, who ran the Emperor’s Club V.I.P. and pleaded guilty in June to prostitution and money laundering charges, took a different view. “I believe that the U.S. attorney’s office acted correctly in the assessment in the facts in the case,” he said.

Don D. Buchwald, a partner in the firm of Kelley Drye & Warren who is the court-appointed lawyer for Ashley Alexandra Dupré, a prostitute Mr. Spitzer met in Washington on Feb. 13, said, “Ashley is pleased that this matter is behind her.”

The former governor has been avoiding publicity while awaiting Mr. Garcia’s decision. There have been few glimpses of Mr. Spitzer and his wife, Silda; a Daily News reporter spotted them recently having breakfast on their wedding anniversary.

He has helped oversee the Manhattan real estate empire of his ailing father, Bernard Spitzer. In mid-September, when he was approached by a reporter outside his father’s Fifth Avenue office, he lamented the federal rescue of the American International Group, the giant insurer, and defended the aggressive steps he had taken to force the ouster of its chairman, Maurice R. Greenberg, in 2005 amid an accounting scandal.

He said the circumstances of his own fall should not diminish his achievements. “I committed my sins, and I’ve paid for them,” he said. Then, referring to A.I.G., he added, “But I was right.”

Friends of the governor say that he has discussed whether to do charity, environmental or free legal work as he rebuilds his life.

“I think this gives him an opportunity to re-sort his public life and to move on,” said Alan Dershowitz, a friend and former law professor of Mr. Spitzer’s. “He was a great political figure who made one mistake and we’re a forgiving country, and the mistake he made was a private mistake.”
 

James Barron, Ralph Blumenthal and Ian Urbina contributed reporting.

    No U.S. Prostitution Charges for Spitzer, NYT, 7.11.2008, http://www.nytimes.com/2008/11/07/nyregion/07spitzer.html?hp

Idaho Child-Killer Duncan Gets 6 Life Sentences

November 3, 2008
Filed at 2:41 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

BOISE, Idaho (AP) -- A federal judge in Idaho has sentenced convicted child killer Joseph Duncan to three life prison terms for kidnapping and sexually abusing two children.

Those federal terms imposed Monday are in addition to three more life terms imposed the same day in state court for the murders of the children's mother, her fiance and the children's 13-year-old brother.

Duncan was sentenced to death in August for the 2005 kidnapping, sexual exploitation and murder of 9-year-old Dylan Groene (GROAN'-ee). The 45-year-old convicted pedophile also kidnapped the boy's younger sister.

Duncan was arrested weeks after the slayings and kidnappings and Dylan's sister was rescued when they turned up in a restaurant at Coeur d'Alene, Idaho.

    Idaho Child-Killer Duncan Gets 6 Life Sentences, NYT, 3.10.2008, http://www.nytimes.com/aponline/us/AP-Duncan-Slayings.html

Execution of Georgia Man in Killing of Officer Is Stayed a Third Time

October 25, 2008
The New York Times
By ROBBIE BROWN

ATLANTA — A federal appeals court on Friday halted the execution of a Georgia inmate convicted in the 1989 killing of a police officer, the third time in 16 months that a stay of execution has been ordered in the case.

The inmate, Troy A. Davis, 40, was scheduled to die by lethal injection on Monday for the murder of Mark A. MacPhail, a Savannah police officer.

In deciding to consider a new hearing for Mr. Davis, the United States Court of Appeals for the 11th Circuit, in Atlanta, asked his lawyers to prove that no reasonable person today would find him guilty.

Since Mr. Davis’s conviction in 1991, seven witnesses have recanted their testimony, including two who said they had felt pressure by the police to testify against Mr. Davis and three who said a different man had admitted to the killing. Prosecutors presented no DNA evidence or murder weapon, although they linked bullet casings found at the scene to a gun they said Mr. Davis had used in an earlier shooting.

The case has bounced around the judicial system, appearing before at least 29 judges in seven types of reviews. The Georgia Supreme Court twice denied Mr. Davis a new hearing, and the United States Supreme Court and the Georgia State Board of Pardons and Paroles have issued stays of execution before rejecting his appeal.

“It’s extraordinary for three stays to be issued in one case,” said Stephen B. Bright, a visiting lecturer at Yale Law School and president of the Southern Center for Human Rights. “Clearly, the case has been very troubling to each of the courts that examined it.”

Mr. Davis’s lawyers have asked the appeals court to decide whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of the innocent, the same question that the Supreme Court declined to consider.

If the appeals court agrees to hear the case, the stay of execution will continue until a decision is reached. If not, Georgia may proceed with the execution.

The outcome is difficult to predict, Mr. Bright said, because previous decisions in the case have been so close.

The Georgia Supreme Court voted 4 to 3 in March against a new trial, and the United States Supreme Court made the unusual decision to meet in conference twice before declining the case.

Officer MacPhail was shot to death early on Aug. 19, 1989, while moonlighting as a security guard. He was breaking up a fight between two men over a beer in a Burger King parking lot when, prosecutors say, Mr. Davis fired three shots from a pistol into his leg, chest and face. Mr. Davis says he left the scene before the shooting.

Mr. Davis has received an outpouring of publicity and support, including demonstrations against his execution on Thursday in 35 cities around the world.

“It’s another small victory in a big war,” said Mr. Davis’s sister, Martina Correia. But the officer’s mother, Anneliese MacPhail, called the ruling the latest episode in a recurring nightmare. “Why in the world do we have to go through this again?” she asked. “I thought when the Supreme Court in Washington ruled, it would be over.”

    Execution of Georgia Man in Killing of Officer Is Stayed a Third Time, NYT, 25.10.2008, http://www.nytimes.com/2008/10/25/us/25execute.html

Ruling on Guns Elicits Rebuke From the Right

October 21, 2008
The New York Times
By ADAM LIPTAK

WASHINGTON — Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges — both Reagan appointees — are more outspoken than most.

Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.

Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe.

The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law.

In Judge Wilkinson’s view, the upshot of the court’s extensive historical analysis was that “both sides fought into overtime to a draw.”

Others said the quality of the combat was low. “Neither of the two main opinions in Heller would pass muster as serious historical writing,” Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued.

The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.”)

But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called “The Embarrassing Second Amendment.”

In an interview, Professor Levinson said, “The result in Heller is eminently respectable.” But he added that he understood why some conservatives were upset. “People say the Roe court was too interventionist,” he said. “So is the Heller court from that perspective.”

Judge Wilkinson’s basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values. He assumed, as most experts do, that the decision would apply to the states.

“In both Roe and Heller,” Judge Wilkinson wrote, “the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

Judge Posner built on themes in his recent book “How Judges Think,” which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

Indeed, Judge Wilkinson wrote, “Some observers may be tempted to view Heller as a revenge of sorts for Roe” or “a sort of judicial tit-for-tat.” As Judge Posner put it, “The idea behind the decision” in Heller “may simply be that turnabout is fair play.”

Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than the courts.

“But these are constitutional rights,” Mr. Levy, now chairman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. “They are not rights consigned to the legislature.”

The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution.

The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right.

In his article, Judge Wilkinson wrote that he “readily agreed” that Roe “involved the more brazen assertion of judicial authority.” But he added that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

    Ruling on Guns Elicits Rebuke From the Right, NYT, 21.10.2008, http://www.nytimes.com/2008/10/21/washington/21guns.html?hp

Judge Orders 17 Detainees at Guantánamo Freed

October 8, 2008
The New York Times
By WILLIAM GLABERSON

WASHINGTON — A federal judge on Tuesday ordered the Bush administration to release 17 detainees at Guantánamo Bay by the end of the week, the first such ruling in nearly seven years of legal disputes over the administration’s detention policies.

The judge, Ricardo M. Urbina of Federal District Court, ordered that the 17 men be brought to his courtroom on Friday from the prison at Guantánamo Bay, Cuba, where they have been held since 2002. He indicated that he would release the men, members of the restive Uighur Muslim minority in western China, into the care of supporters in the United States, initially in the Washington area.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said.

Saying the men had never fought the United States and were not a security threat, he tersely rejected Bush administration claims that he lacked the power to order the men set free in the United States and government requests that he stay his order to permit an immediate appeal.

The ruling was a sharp setback for the administration, which has waged a long legal battle to defend its policies of detention at the naval base at Guantánamo Bay, arguing a broad executive power in waging war. Federal courts up to the Supreme Court have waded through detention questions and in several major cases the courts have rejected administration contentions.

The government recently conceded that it would no longer try to prove that the Uighurs were enemy combatants, the classification it uses to detain people at Guantánamo, where 255 men are now held. But it has fought efforts by lawyers for the men to have them released into the United States, saying the Uighurs admitted to receiving weapons training in Taliban-controlled Afghanistan at the time of the Sept. 11, 2001, attacks.

The White House press secretary, Dana Perino, said the administration was “deeply concerned by, and strongly disagrees with” the decision. She added that the ruling, “if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.”

Justice Department lawyers said they were filing an emergency application on Tuesday night for a stay from the federal appeals court in Washington.

Judge Urbina’s decision came in a habeas corpus lawsuit authorized by a landmark Supreme Court ruling in June that gave detainees the right to have federal judges review the reason for their detention. Speaking from the bench in a courtroom crowded with Uighur supporters of the detainees, Judge Urbina suggested that the government was seeking a stay as a tactic to keep the men imprisoned.

“All of this means more delay,” he said with evident impatience, “and delay is the name of the game up until this point.” The centuries-old doctrine of habeas corpus permits a judge to demand production of a prisoner, a power Judge Urbina sought to exercise with his order that the men be brought to him.

“I want to see the individuals,” he said.

The Uighurs have long been at the center of contentious legal cases because they said they were swept into detention in Afghanistan in 2001 by mistake. They said they were in Afghanistan to seek refuge from China, where the Uighurs, Turkic Muslims, often bridle at Han Chinese rule.

The Bush administration has fought the Uighurs in court for years, contending that their encampment in Afghanistan had ties to a Uighur terror group. Last summer, a federal appeals court ridiculed as inadequate the government’s secret evidence for holding one of the men. In the months since, the government has said that it would “serve no useful purpose” to continue to try to prove that any of these 17 men were enemy combatants.

Lawyers for the Uighurs said the men would be persecuted or killed if they were returned to China. The administration said that since transferring five Uighur detainees to Albania in 2006, it had been unable to persuade governments to accept the other 17. Diplomats say many governments fear reprisal by China, which considers Uighur separatist groups terrorists.

The administration insisted during arguments on Tuesday that the courts did not have the power to release the men into the United States.

Judge Urbina, an appointee of President Bill Clinton, underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role.

He rejected Justice Department arguments as assertions of executive power to detain people indefinitely without court review. He said that “is not in keeping with our system of government.”

More than 40 Uighurs, a few in native dress that included sequined velvet caps, watched in anxious silence. Only when the judge rose to leave the bench did they break into applause.

“Truth will win at the end,” said Elfidar Iltebir, one of the Uighurs, who is a computer systems manager in Virginia. Some of the men and women had come to court to describe the rooms, in the Washington suburbs, that they would offer the 17 men.

The ruling set the stage for a confrontation between the courts and the administration. John C. O’Quinn, a deputy assistant attorney general, suggested that immigration or Department of Homeland Security officials might detain the men when they were taken to the Washington area. Mr. O’Quinn argued that only the executive branch of the government, not the courts, could decide about immigration.

Mr. O’Quinn said such detainees would have no legal status in the United States. “Normally,” he added, “the law would potentially require them to be taken into some sort of protective custody.”

Judge Urbina said such arrests would not be appropriate. But he did not specify what he might do if the men were seized after being released by the Pentagon.

“I do not expect these Uighurs will be molested by any member of the United States government,” Judge Urbina said sharply. “I’m a federal judge, and I’ve issued an order.”

The Uighurs’ lawyers, Americans who have worked on the cases for years, had come to court prepared to outline a complex plan for support from community and church groups in the Washington area and in Tallahassee, Fla., where some of the men might eventually be resettled.

But Judge Urbina did not call for the testimony, saying he would hold a hearing on that matter on Oct. 16, after the men would already be free. He said he would impose conditions on their release, including appearances before him every six months. Lawyers for the Uighurs were pleased with the ruling.

P. Sabin Willett argued the case on Tuesday. In a crowd in the well of the courtroom after the judge had left the bench, Mr. Willett said there had been so many defeats over the years that he was not sure what to say at the prospect of the first federal case that might bring freedom to men in Guantánamo.

“We’ve had so many hearings where we didn’t even get half a loaf, we got a little crumb,” he said. “I’m emotionally unprepared for this.”

    Judge Orders 17 Detainees at Guantánamo Freed, NYT, 8.10.2008, http://www.nytimes.com/2008/10/08/washington/08detain.html?hp

Appeals Court Overturns

2 Terrorism Convictions

October 3, 2008
The New York Times
By BENJAMIN WEISER

Finding that a Yemeni cleric and his assistant had been deprived of a fair trial because of errors by the presiding judge, a federal appeals panel in New York on Thursday overturned their convictions in a prominent terrorism case once hailed by the Bush administration as a significant blow to Al Qaeda.

The appeals court judges found that the defendants, Sheik Mohammed Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed, did not receive a fair trial because the trial judge, Sterling Johnson Jr., allowed the jury to hear inflammatory testimony and other evidence that prejudiced the defendants’ case.

The appeals panel sent the case back to the lower court, Federal District Court in Brooklyn, but in a highly unusual step, directed that it be assigned to a different judge.

Judge Johnson presided over the five-week trial in 2005. Both defendants were convicted of charges including conspiracy to support Al Qaeda and Hamas, and were sentenced to long prison terms.

Even before the trial, the case received wide attention when the government’s chief witness, a Yemeni informer, set himself on fire outside the White House. And in 2003, when John Ashcroft, then the attorney general, announced the charges against Sheik Moayad, he said the sheik had admitted to having given Osama bin Laden $20 million before the Sept. 11 terror attacks.

But in overturning the verdict, the three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that Judge Johnson erred in allowing the jury to hear evidence like the graphic testimony of a survivor of a fatal 2002 bus bombing in Tel Aviv, in which the defendants had not been implicated. Prosecutors had said the testimony was necessary to establish that the defendants knew that Hamas, which claimed responsibility for the bombing, engaged in terrorist activity, a point the defendants did not dispute.

Judge Barrington D. Parker Jr., writing for the appellate panel, said that the bombing, which killed six people, “was almost entirely unrelated” to the charges.

He also wrote that Judge Johnson should not have allowed testimony from another witness, Yahya Goba, who described spending time at a Qaeda training camp in Afghanistan that Mr. bin Laden visited.

Prosecutors had called Mr. Goba, over defense objections, to explain the significance of a training camp registration form found by American forces in Afghanistan, on which a trainee had listed Sheik Moayad as having recommended him.

But Judge Parker wrote that Mr. Goba’s testimony ranged far beyond that, as he described the camp’s training in explosives and weapons and the visits by Mr. bin Laden. He also summarized a speech Mr. bin Laden gave in which he talked about the importance of “performing jihad,” Judge Parker noted.

Judge Parker wrote that the value of the testimony of both the Tel Aviv bus bombing victim and Mr. Goba “was far outweighed by its unfair prejudice.”

Robert J. Boyle, the lawyer for Sheik Moayad, who is 60, said he was “extremely gratified” by the decision, “particularly its emphasis on the cumulative effect of the trial errors.”

“I hope this means that Sheik Moayad, who’s elderly and not in good health, will be able to go back to his country in the very near future,” Mr. Boyle said.

Mr. Zayed’s lawyer, Steven A. Feldman, said: “Even in the war on terror, justice knows no country. Justice was served.”

Sheik Moayad, who was sentenced to 75 years in prison, and Mr. Zayed, who is in his mid-30s and received 45 years, are both being held at the federal “supermax” prison in Florence, Colo.

Robert Nardoza, a spokesman for the United States attorney’s office in Brooklyn, said, “We are reviewing the decision and will consider the options available to the government before deciding our next course of action.”

If prosecutors choose to retry the case, they will have to go before a new judge, as the panel directed in its 68-page opinion.

Stephen Gillers, a professor of legal ethics at the New York University School of Law, said that typically appeals courts assume that when there are trial errors, the lower-court judge will not repeat the mistakes, and the case is returned to the same judge.

“It’s extremely rare to send a case to a different judge simply for errors,” Professor Gillers said. “It shows a lack of confidence.”

The panel, which also included Judges Joseph M. McLaughlin and Richard C. Wesley, also said that the conduct of the prosecutors probably increased the prejudicial effect of the two witnesses’ testimony.

“During both examinations,” Judge Parker wrote, “the government continuously attempted (with a great deal of success) to elicit testimony” that went well beyond the scope of its reasons for calling each witness.

    Appeals Court Overturns 2 Terrorism Convictions, NYT, 3.10.2008, http://www.nytimes.com/2008/10/03/nyregion/03cleric.html

Editorial

Investigating a Scandal

October 1, 2008
The New York Times
 

Attorney General Michael Mukasey made the right choice by appointing a federal prosecutor to decide whether his predecessor, Alberto Gonzales, and others should face criminal charges for the firing of nine prosecutors for what appear to have been partisan reasons.

Mr. Mukasey acted on Monday after the Justice Department released a harshly critical report by the inspector general that confirmed what an incompetent, unethical and very possibly corrupt attorney general Mr. Gonzales was. Given that history, and Mr. Mukasey’s failure to clean up his own house, the burden will be on the newly appointed prosecutor to investigate the matter fairly and thoroughly.

Congress’s inquiry into the firing of nine United States attorneys has already uncovered improper and perhaps illegal activity at the highest levels of the Justice Department. There is considerable evidence that the prosecutors were fired because they insisted on bringing cases harmful to Republicans’ electoral chances, or refused to bring cases harmful to Democrats.

Monica Goodling, a top aide to Mr. Gonzales, resigned after having taken politics into account in hiring lawyers for nonpolitical positions. Mr. Gonzales resigned after questions were raised about his role in the firings and about the truth of his testimony to Congress.

Now, a 392-page joint report from the department’s inspector general and its office of professional responsibility “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. attorneys.”

It concluded, in particular, that David Iglesias, the United States attorney for New Mexico, was removed because of complaints from influential Republicans about his handling of voter fraud and public corruption cases. He was removed, the report said, “without any inquiry into his handling of the cases.”

The report also confirmed that the Bush administration has been stonewalling. It found that Mr. Gonzales, his chief of staff, Kyle Sampson, and his deputy, Paul McNulty, failed “to provide accurate and truthful statements about the removals and their role in the process.” It also noted that important witnesses, including Karl Rove and Harriet Miers, the former White House counsel, refused to be interviewed. And it said that the White House refused to provide certain documents.

Mr. Mukasey has named Nora Dannehy, the acting United States attorney in Connecticut, to lead the investigation. Internal investigations always invite skepticism. That is particularly true when a department’s officials have actively obstructed an initial inquiry.

For Ms. Dannehy’s investigation to have any credibility, she must obtain sworn testimony from Mr. Rove, Ms. Miers and other witnesses who have defied Congressional subpoenas. She also needs to get the documents that the White House has refused to hand over to Congress and the inspector general.

The inspector general’s report makes clear that top Justice Department officials acted inappropriately. It falls to Ms. Dannehy to discover if they broke laws, and if so, bring them to justice.

    Investigating a Scandal, NYT, 1.10.2008, http://www.nytimes.com/2008/10/01/opinion/01wed1.html